Court upholds in-state tuition for illegal immigrants

Illegal immigrants can continue to pay in-state tuition at California’s public colleges and universities, the state Supreme Court unanimously ruled Monday.

“We’re really pleased with this judgment,” said Constance Carroll, chancellor of the San Diego Community College District, which advocated for that outcome. “As we said in our brief, this is really a matter of California law and California decision making. We feel that these young immigrants, who have bright futures, are being treated fairly.”

The court ruled on a suit originally filed in Yolo County in 2005 by a group of students and parents from 19 states outside of California. The plaintiffs contended that a 2001 state law, AB 540, improperly circumvented a federal law meant to prevent the granting of in-state tuition to illegal immigrants. The state law remained in effect during the litigation.

“Just common sense would dictate that if someone is not here legally, then that person is not an in-state resident and not entitled to in-state tuition,” said Tony Krvaric, chairman of the Republican Party of San Diego County. “This is pretty much what Americans are rising up against, as in the last election. Not this specifically, but this kind of thing – judges making decisions and ignoring what people vote for.”

The suit targeted the University of California, the California State University system and the state’s community colleges, which all supported the original legislation.

Ethan Schulman, the San Francisco attorney who represented the UC system, said the justices recognized the defendants’ argument that AB 540 “doesn’t grant any benefits based on residence.”

The law was carefully drawn, he said, to avoid conflict with the federal statute. The law says anyone who attended three years of high school in California and graduated here is eligible for in-state tuition. For example, he said, it applies to U.S. citizens who are legal residents of other states but attend boarding school in California and those who go to high school here and move out of state, establishing residency elsewhere, but then return.

“In the UC system every year since the law was put into effect the majority of students who have qualified for the exemption are U.S. citizens or legal residents, not illegal immigrants,” Schulman said, “so there’s a disconnect here in the other side’s argument.”

Schulman also noted that since the plaintiffs were out-of-state residents and would have to pay out-of-state tuition regardless of what illegal immigrants pay, their grievances were suspect.

“It does suggest that the motivation is more political than anything else,” Schulman said.

Kris Kobach, the plaintiff’s lawyer who argued the case before the Supreme Court, said the team will seek to have the U.S. Supreme Court consider the matter.

“The California Supreme Court glossed over a number of issues it needed to address,” said Kobach, a law professor who was elected Kansas’ secretary of state this month. “It misinterpreted the federal statute. Congress clearly intended to keep California and New York from doing what they’re doing. The federal law pre-empts this statute.

“It appears,” added Kobach, who is also general counsel for the Immigration Reform Law Institute in Washington, D.C., “the California Supreme Court was driven to reach the result it did regardless of whether the legal arguments supported the conclusion. It was a very cursory opinion.”

At least nine states have laws similar to California’s and the case was being watched across the country as an indicator of how other challenges might fare.

Statewide, slightly more than 2,000 University of California students qualified for an AB 540 exemption in 2008-09, the university said. Of those, only about 400 were illegal immigrants. Figures for the CSU system were not immediately available.

Carroll said that about 1,100 of the 140,000 students who attend her district’s three colleges and continuing education programs received the exemption.

“We figure about half of that group may fall into the undocumented category,” she said.